Scarce resources led to 'dangerous unbalance' within local justice systems

Scarce resources led to 'dangerous unbalance' within local justice systems

There aren't enough resources for overworked public defenders, dollars for expert witnesses, or streamlined data on local justice systems, an indigency task force appointed by the Tennessee Supreme Court has found.

The task force held nine public meetings in Nashville, heard from 90 people during a listening tour starting in 2015, and reached a bleak conclusion about the last 20 years of the criminal justice system in a Monday report: The ratio of poor defendants to public defender attorneys has become dangerously unbalanced, and the system won't be able to sustain itself without some help.

A 2000 U.S. Department of Justice report estimated 60 to 90 percent of all criminal cases involved defendants who can't afford an attorney. In the decades since, public defenders have experienced shortage crises and shoestring budgets, with attorneys in some Louisiana parishes refusing to take defendants altogether in 2016, news accounts show.

"There's been a dramatic rise in cases, but there's not been a dramatic rise in prosecutors, public defenders or even court clerks," Hamilton County Public Defender Steve Smith, whose 16 assistants handle 45 cases on average from start to finish, said Tuesday. "There weren't any public defenders on that panel, so I'm pleased that even without having them, all the other justice stakeholders recognized the need to fund them."

Among other suggestions, the report called for leveling out the funding for defenders in rural versus urban counties, giving more administrators the ability to evaluate someone's indigency, and creating another task force to study the possibility of making an office to handle post-conviction appeals.

"Whereas the district attorney has the attorney general to handle appeals after a jury trial, the public defender's office, already short on resources, is trying to do the investigative work to go to trial, the mitigation work for sentencing hearings, the trial work, and, in addition to that, the appeals, " said Hamilton County Criminal Court Judge Barry Steelman, who worked on the task force.

Steelman said those suggestions were presented Monday to the Tennessee Supreme Court and will likely be addressed during the next legislative session in 2018. The idea behind most of them is to shore up resources for the poor inside a backlogged system that wants to protect everyone's constitutional rights. But the report also detailed a number of factors that impact the indigent in most modern justice systems, such as pretrial incarceration, digitizing records, and laws that create more court costs.

Many public defenders and private defense attorneys said they were able to work more efficiently in counties with digitized court records online, according to the report. "The task force recommends that counties should be encouraged to [digitize] their records and that serious consideration should be given to provide funding incentives to do so."

Criminal Court Clerk Vince Dean said Hamilton County is considering phasing in such a program over several years because of the cost. "It was in the neighborhood of $80,000 for the initial piece of equipment," he said. "That doesn't include the cost of transferring stuff."

Dean also oversees court costs, which many defendants want to pay but cannot because they're poor, homeless, disabled or incarcerated, the report said. It pointed to a 2012 law in Tennessee's General Assembly that allowed local clerks to revoke someone's driver's license if they hadn't paid criminal costs in more than a year.

"Court clerks in Tennessee are now commonly using this statute as a collection tool," the report said. "Since 2011, 191,089 persons have had their driver's licenses revoked [which] is a criminal offense. Accordingly, an arrest for driving on a suspended or revoked license triggers a criminal prosecution and the accused's right to counsel."

Hamilton County District Attorney General Neal Pinkston said prosecutors then have to spend time and energy on those cases — which are minor in the grand scheme of murders, assaults and burglaries.

"That's really part of a larger issue," Pinkston wrote in an email Tuesday. "A very high number of misdemeanor charges are not resolved in Sessions or municipal courts. I speculate 30 to 40 percent of cases bound over to a grand jury are minor offenses."

Sessions clerks could not provide that data Tuesday, but did say nearly 2,500 people alone were arrested and charged with driving on a revoked license in 2016.

General Sessions Court is where numerous defendants make their first appearance after an arrest. Down there, defendants can request a preliminary hearing and hear the state's proof so far against them. A judge then sends the case to a grand jury if there's enough probable cause. And if the grand jury returns an indictment, they proceed to Criminal Court, where more serious cases gravitate.

But during the process, defense attorney Bill Speek said, defendants face a long wait in Hamilton County Jail if they can't afford bond.

"People sit in jail for months on misdemeanor assault or [driving under the influence] until it comes out of the grand jury," Speek said. "Are rich people inherently safer for the community? I don't think so."

The report also weighed in on indigent defendants who managed to scrounge together the resources to make bond: "The perception sometimes voiced by courts that, 'If you can make bail, you can afford a lawyer' forces the accused to choose between two constitutional rights: the right to a bond and the right to counsel."